JFK Court Report: Recent Cases from Saskatchewan

Several cases of interest came out of the Saskatchewan courts in April of 2015.

Court of Queen’s Bench

In Métis Nation Saskatchewan v Morin, 2015 SKQB 98, the Court released reasons on an application for a mandatory injunction to require the Provincial Métis Council (“PMC”) to hold a session of the Métis National Legislative Assembly (“MNLA”) as soon as possible.

The application, brought by a representative of the Métis Nation – Saskatchewan (“MNS”), was based on the fact that the respondent PMC had failed to hold a session of the MNLA since November of 2010. Under the Constitution of MNS, two sessions of the MNLA and one General Assembly are to be held each year, the date and place of which are to be set by the PMC. The catalyst for the proceedings was that, effective November 1, 2014, the Minister of Aboriginal Affairs and Northern Development Canada had suspended funding for MNS because the MNLAs had not been held.

In January of 2015, the PMC made the decision to call an MNLA for September of 2015. The question faced by the Court on this application was whether the PMC’s decision to set the MNLA for September of 2015 instead of significantly earlier was a breach of constitutional or other rights, and was of such impact that the court should intervene. In making its determination, the Court needed to consider whether it should or could intervene in a political dispute with a self-proclaimed legislative body, and if so, in what circumstances.

The Court allowed the application, concluding that:

(a) there was a strong prima facie case that the PMC was in continuing breach of its constitutional obligation to convene an MNLA as soon as possible;

(b) MNS would suffer irreparable damage if the relief being sought was not provided;

(c) in weighing the balance of inconvenience, the greater injustice would result from the Court declining to grant relief that advanced the date of the MNLA.

The PMC was ordered to take steps to hold a session of the MNLA by no later than June 19, 2015.

In April the Court of Appeal for Saskatchewan released two related judgements challenging decisions of the Registrar of Indian and Northern Affairs. The challenges involved family members trying to settle who was entitled to be a member of the Wood Mountain Lakota Nation. Both were appeals of a Chambers judge’s review of Registrar decisions, with one challenging a decision that a protest filed under s. 14.2(1) of the Indian Act was out of time, and the other challenging a specific addition to the Indian Register.

Here the Registrar had concluded that the appellants were out of time to protest the status of various members of their Nation. Section 14.2(1) of the Indian Act permits the filing of a protest within three years of the Registrar adding a person to the Indian Registry and Band List.

Since 1990, the Registrar had found various members of the respondents’ family to be Indians under the Indian Act, and had added their names to the Indian Registry and the Nation’s Band List. In 2010, the appellants filed a protest of these additions with the Registrar. The Registrar dismissed their protests on the basis that they were out of time.

In appealing the Registrar’s decisions and the subsequent dismissal of their appeals by the Chambers judge, the appellants raised various challenges. The challenges questioned whether s. 14.2(1) was a true limitation period, and if so, whether the principle of discoverability applied.

In dismissing the appeals, the court found the three year limit on protests was not a true “limitation period” and as such was not dependent on a protestor’s knowledge of the decision having been made. The purpose of the time limit was to make the Registrar’s decision final, and to avoid the possibility that a person’s status could be “perpetually subject to challenge”.

As such, the decision stands as a warning that if not filed within three years of the Registrar’s decision, a protest under s. 14.2(1) of the Indian Act is likely to be dismissed for being out of time.

Here the same group of appellants challenged the Registrar’s decision to grant status to the respondent Ms. Beryl Tresa Jordinson. The appellants claimed that Ms. Jordinson was ineligible to be a member because her father lost his status by becoming an enfranchised Indian.

The court upheld the decision of the Chambers judge who found that while the 1906 Indian Act established a process for enfranchisement, the process did not apply in Saskatchewan. Furthermore, it was undisputed that Ms. Jordinson’s father had never applied to be enfranchised under this process, nor was an order for enfranchisement ever issued for him. The appellants had argued that nonetheless, by applying for and receiving a homestead, Ms. Jordinson’s father had been either “voluntarily” or “constructively” enfranchised. The court rejected this argument, stating that no such concepts exist at law and confirming that enfranchisement is a legislative construct only and one that has been repealed for the most part by the 1985 Indian Act. The appeal was dismissed and costs awarded to Ms. Jordinson.

This appeal considered whether the duty to consult is triggered by the Crown’s granting exploration permits for subsurface oil sands minerals under Treaty 10 lands. The Buffalo River Dene Nation (“BRDN”) had sought to challenge the permits on the basis that the Crown had failed to consult with them about the impacts of oil sands exploration and development on the Treaty lands subject to the permits.

A Queen’s Bench Chambers judge found the duty was not triggered because the possibility of impacts to BRDN’s Treaty rights from the permits was too speculative, and the Court of Appeal agreed. In coming to its decision, the Court said that while the permits may grant the permit-holder exclusive subsurface rights and exploration rights in a specified area, they are only the first of three stages relating to mineral extraction. The second stage, the Court explained, requires the permit-holder to obtain surface access rights, and in the third stage they must successfully obtain a lease in order to begin extracting the minerals.

The Court agreed with the Crown’s position that while the duty to consult was triggered at the second stage and third stages, it was not triggered at the permit stage. The Court stated that while it is true that the duty to consult is triggered at a low threshold, it must remain a meaningful threshold. The Court found there was no “obvious or immediate physical impact” to BRDN’s Treaty rights from the permits being issued. Furthermore, the Court relied on the requirements of the second and third stages of the regulatory regime to conclude that the permits did not “set the stage” for future exploration or development. As such, the Court concluded that the issuance of the permits did not constitute Crown conduct that either directly or indirectly impacted Treaty rights such that the duty to consult was triggered. BRDN’s appeal was dismissed.